On this 13th of September, in the Supreme Federal Court, retired Justice Sebastião Coelho took the podium reserved for the defense attorney to undertake an impossible mission: to save sanitation technician Aécio Lúcio Costa Pereira, 51 years old, from São José do Rio Preto, São Paulo, from conviction. He is the first in a long line of defendants made up of Brazilians accused of involvement in the attacks on the seats of the three branches that occurred on January 8th. Prohibited from attending the trial in the courtroom, the client heard in a cell the lawyer’s message: the decision would be political. Although he knows that even undeniable material evidence counts for less than zero in decisions as predictable as the changing of seasons, Coelho included legal arguments in his oral submission. He pointed out, for example, that it is not possible to see a coup d’état in the vandalism of buildings and objects belonging to public property.
“The weapons we have in this process are pocket knives, marbles, and axes,” the lawyer recalled. “There was no military unit on standby. Who would take over power if there was a coup?” Coelho also warned that everyone was in the wrong place: “The Constitution says that no one will be prosecuted or sentenced except by the competent authority. There will be no exceptional jurisdiction. In the case we are examining, the competence for the trial belongs to the federal court of first instance. This tribunal is illegitimate for this trial.” Aware that these and other obvious points had been deliberately forgotten, Coelho opted for a path that led him to compensate for the inevitable defeat with a much more impressive feat: with a short and powerful sequence of messages marked by courageous clarity, he threw to the wind the pandemic of fear that has been fueled for more than four years by illegal, abusive, and authoritarian decisions endorsed by the court led by Alexandre de Moraes.
The first message was addressed to the President of the National Council of Justice, Luis Felipe Salomão, who began investigating Coelho by breaking his bank secrecy between August 1, 2022, and January 8, 2023. After noting that he had learned of this while on his way to the court, the investigated lawyer informed Salomão that the attempt at intimidation had not yielded results: “I am 68 years old and have some little health problems. I could die at any moment. I don’t have time to be afraid.” On the same Wednesday, Coelho sent copies of his income statement and bank account statements to media outlets. “Nothing intimidates me,” he reiterated. Not even stern faces in robes, he informed in the final part of his presentation.
“On these benches here, on both sides, are the most hated people in this country,” he warned. Clarifying that he said this “with sadness,” he reiterated the observation underscored by the uncomfortable silence of an audience filled with law students. “Your Excellencies must be aware that you are hated people. Someone has to say it because you need to know that.” Alexandre de Moraes received a personal and non-transferable reminder: “The defense understands that Your Excellency is suspect to judge this case.” If Brazil were not upside down, only people with the right to privileged jurisdiction or those involved in cases that for some reason deserve the attention of the highest court would have their fate decided by the STF. But these are strange times.
Since 2019, when the so-called inquiry into fake news and anti-democratic acts (better known by its perfect codename: “end-of-the-world inquiry”) was opened, the Brazilian accusatory system has been demolished. No one really knows how many such investigations are conducted by Moraes. The noises of January 8 alone are targeted by six investigations, all of them secret. The accused do not know precisely which crimes they have been charged with. If there is no legal norm authorizing the punishment of a persecuted person, one creates some. If the Constitution prohibits it, one figures it out. The court tasked with ensuring the country’s legal security and preserving constitutional norms even violates fundamental clauses and perpetuates insecurity. Alarmingly often, it acts outside the law—led by a minister unable to accept any criticism, corrections, or differing opinions.
Predictably, the retired judge’s speech made Moraes’s temperature rise to the point of combustion—and stay there, indifferent to successive sips of water. Always entangled in the thicket of verbal regencies, pronouns, plurals, and redundancies, the rapporteur replied: “Sometimes, the flat-Earthism and dark denialism of some people make it seem like we had a Sunday in the park on January 8th. It’s so ridiculous to hear this that the Brazilian Bar Association (OAB) should not allow something like that.” He thought it insufficient to demand that the OAB prohibit its members from contradicting him. “The extremists who do not like the STF are a minority. This has been demonstrated at the ballot box and in the coup-plotting acts, which a minority carried out and were repudiated by the Brazilian population,” he overflowed with rage. At the ballot box? Moraes must believe that, since the STF supported the victorious candidate, only a handful of 58 million fascists hate the robed heroes who saved democracy.
After sentencing the defendant to 17 years in prison in a closed regime, as well as imposing a “solidarity fine” of R$ 45,000, the rapporteur listened with a bored expression to the sensible observations of the reviewer Nunes Marques. One of the two ministers appointed by Jair Bolsonaro, Nunes Marques reiterated that the trial will not be fair without individualized conduct. “One person cannot be held responsible for what another has committed,” Nunes Marques taught. “The individualization of the agent’s conduct is a guarantee,” he stated. “Article 41 of the Code of Criminal Procedure establishes as requirements for the validity of the indictment the presentation of the criminal act, with all its circumstances, the qualification of the accused, and the classification of the crime,” agrees criminal lawyer Davi Rodney Silva. “In the case of January 8, with the images and every material investigated, it is possible to individualize conduct.” In a few lines, Nunes Marques shattered the illusion of the “coup d’état.” “The methods used on January 8, 2023, actually characterize the hypothesis of an impossible crime, due to the absolute inefficacy of the means employed by the protesters to undermine the Democratic State of Law.” He sentenced Pereira to two and a half years in an open regime, for “deterioration of listed heritage and aggravated damage by violence.”
The voice of intolerance echoed again when André Mendonça, also appointed by Bolsonaro, challenged one of Moraes’ certainties. “The protesters did not act to try to overthrow the government,” said the minister in his vote. “The overthrow of the government would depend on acts that were not within the reach of these people.” Minister of Justice during the Bolsonaro administration, Mendonça was puzzled by the ease with which so many protesters entered the buildings. “Where was the entire force of the National Force? During all the September 7 movements, I was on duty with a team available, whether in the Ministry of Justice or with officers from the National Force who would arrive here within minutes. I cannot understand how the Planalto Palace was invaded in the way it was invaded.”
The judiciary does not know how many people have been released from jail due to lack of evidence but will only be rid of the ankle bracelet or return to a cell if they accept the infamous “criminal settlement agreement” proposed by the Attorney General’s Office: to regain full freedom, an innocent person will have to plead guilty
He was interrupted by the chief of the Supreme Court. “For Your Excellency to say that the blame for January 8 lies with the Minister of Justice is absurd, when five commanders of the Military Police of Brasília are in prison,” Moraes became irritated. “The former Minister of Justice, who fled to the United States and threw his cell phone in the trash, was arrested. Your Excellency comes to the plenary of the STF, which was destroyed, to say that there was a government conspiracy against the government itself. Have a heart.” Mendonça advised the rapporteur not to attribute statements to him that he had not made. But he did not absolve the defendant of all five crimes charged to him by Carlos Frederico dos Santos, a representative of the Attorney General’s Office, emphatically endorsed by Moraes: violent abolition of the Democratic State of Law, coup d’état, armed criminal association, aggravated damage, and degradation of listed heritage.
Mendonça limited himself to mitigating the sentence applied by Moraes and adopted by the majority of the plenary. With small differences, the same punishment was extended to Thiago Mathar, 43 years old, and Mateus Lázaro, 24 years old, tried on Thursday. There was no time to punish the fourth member of the first batch: Moacir José dos Santos, 52. Thiago and Moacir were captured inside the invaded buildings. Mateus was 5 kilometers from the Three Branches Plaza when he was arrested by police officers. But like Aécio, all three were charged with the same five offenses. It is unlikely that, as happened in Mateus’s case, the distance from the epicenter of the disturbances will dampen the enthusiasm of the jailers in future trials. “The sentencing was excessive,” notes the lawyer Davi Rodney Silva. “The ministers disregarded the fact that the defendants were first-time offenders.” In both sessions, the doctors who control the Supreme Court stripped away pieces of lives without hesitation—and without the anguish that usually visits judges who have not abandoned compassion. When newcomer Cristiano Zanin, for example, decided on a prison term slightly lower than that imposed by Moraes, the rapporteur maintained his momentary good humor. “Your Excellency will eventually agree with me on the number of years,” he joked.
The discomfort caused by the slowness of the trial is likely to hasten the adoption of virtual sessions. According to the most recent survey released by the STF, 1,345 people involved in the January 8 protests are tormented by restrictive measures that include the use of electronic ankle bracelets, geographic limitations on movements, and a ban on accessing social networks. There are 105 men imprisoned in Papuda and, in Colmeia, 12 women. The judiciary does not know how many people have been released from jail due to lack of evidence but will only be rid of the ankle bracelet or return to a cell if they accept the infamous “criminal settlement agreement” proposed by the Attorney General’s Office: to regain full freedom, an innocent person will have to plead guilty. The perverse creativity of Brazilian executioners has far exceeded the imagination of their counterparts serving aging dictatorships, such as those plaguing Cuba or North Korea.
Uncertainty has stolen the sleep of the victims of Moraes’ invention: relative freedom, or half imprisonment. Among this crowd is retired teacher Iraci Nagoshi, 70 years old, who spent seven months incarcerated. Doctors confirmed that Iraci suffers from a combination of illnesses—diabetes, hyperthyroidism, and dyslipidemia. In jail, she survived bouts of anxiety and depression. “She herself does not want to meet many people, due to her emotional condition,” says her oldest son, Newton, who has been battling cancer since 2019. According to Newton, his mother only leaves the house in São Caetano do Sul at the times set by the police. “She is undergoing physiotherapy three times a week to regain movement in the right side of her face,” the son said.
Jean da Silva, a 27-year-old from Mato Grosso state who collects recyclable materials in Juara, does not know why he is still required to wear an electronic ankle bracelet since leaving Papuda in July. According to his sister Geane, he is autistic and has moderate intellectual disability. Released after seven months in prison, Jean also does not know that, depending on the moods of Moraes and his partners, he could be imprisoned again, wear the ankle bracelet for a few years, or be subjected to perpetual half imprisonment. Absurdities of this magnitude do not disturb the tranquility of the ministers. Only a few lawyers—willing to confront the arrogance, pride, and tantrums of the Robe’s Big Team’s strikers—are outraged. On Thursday, for example, two other defenders of “coup plotters” were caught up with by the wrath of Moraes. The minister was irritated with Larissa Lopes de Araújo, who cried while recalling the defendant’s ordeal. “Sentimentalism,” Moraes sneered. Hery Kattwinkel heard similar words to those directed at Sebastião Coelho. At the end of the oral argument, Mathar’s lawyer was called “mediocre” and “pathetic.” No surprise there.
Surprising were the signs that Coelho’s pride and courage are contagious. Kattwinkel harshly and fearlessly criticized Moraes’ behavior and disastrous statements by Luís Roberto Barroso. When paralyzing fear eventually ends, the STF will soon come to its senses—and regain the respect it lost by institutionalizing the triumph of injustice.